Did you know that there is no case law from the Supreme Court of Canada addressing the use of the armchair rule? The lack of guidance from Canada’s top court is unfortunate since some courts are applying the rule quite restrictively, while others have embraced a more expansive approach. There appears to be a debate afoot as to how the armchair rule should be utilized.
The armchair rule enables a court to put itself in the position of the testator when the testator’s will was made, and construe the will in light of the surrounding facts and circumstances known to the testator at that time. Traditionally, the rule was used to admit extrinsic evidence of the testator’s intention if a will was ambiguous or unclear. However, Ontario courts are now using the rule to consider the testator’s subjective intention from the outset when interpreting a will, regardless of whether the will is ambiguous. As noted by the Court of Appeal in Ross v Canada Trust Company, 2021 ONCA 161, the armchair rule can now be treated as an “over-arching framework” for will construction.
Last year, the armchair rule was used to save a residuary gift from lapsing and being distributed on intestacy in Re: Estate of Constance Evelyn Stevenson, 2022 ONSC 6416. In finding that the residuary bequest did not lapse, the court directed the bequest to go to a beneficiary who had already received a different portion of the residue as a gift over. Otherwise, the remaining portion of the residue would have been inherited by relatives of the deceased who were essentially strangers to her. In finding that the residuary gift did not lapse, the court confirmed that the armchair rule could be used to attempt to give effect to the testatrix’s wishes and determine whether there was a “contrary intention in the will” to prevent the gift from lapsing.
It appears that courts in other provinces may be less inclined to use the armchair rule to prevent a gift from lapsing, regardless of the wishes of the testator. For example, in Gilchrist v Gilchrist, 2023 SKKB 187, Justice Currie refused to apply the armchair rule to prevent the residue of the deceased’s estate from being distributed on intestacy. The deceased had left the residue of her estate to her parents, who predeceased her, and her will did not provide for a gift over or alternate beneficiary. The executor of the estate asked the court to apply the armchair rule to prevent the residue from being distributed on intestacy amongst all of the deceased’s siblings, as there was evidence that the deceased never intended one of her brothers to benefit from her estate. Justice Currie dismissed the application, holding that the armchair rule should only be used to resolve ambiguities related to the interpretation of words used in a will and that it could not be used to determine what the deceased’s testamentary intention would have been had she turned her mind to the possibility of her parents predeceasing her.
The restricted approach to the armchair rule endorsed by the court in Gilchrist is disappointing because there was evidence that the deceased did not intend to benefit her brother with an inheritance.
It would be interesting to know if the outcome in Gilchrist would have been different had the court considered subsection 22(1)(b) of the Wills Act, 1996, SS 1996, c W-14.1, which provides that if a beneficiary predeceases the testator, the bequest will not lapse as long the beneficiary leaves issue who is (or are) alive when the testator passes away. The legislation also provides that the anti-lapse provision will not apply if “a contrary intention appears in the will”. Had subsection 22(1)(b) been considered, the court would have had an opportunity to consider whether a contrary intention was expressed in the deceased’s will, which would have prevented the residue of her estate from being distributed to her brother. Depending on the court’s perspective regarding the armchair rule, the court also could have used the rule to consider the deceased’s subjective intention. After all, the Superior Court of Justice’s decision in the aforementioned Stevenson case serves as a reminder that the armchair rule can be used to find a contrary intention in a will in order to prevent a bequest from lapsing.
Thank you for reading, and enjoy the rest of your day,